P L D 2024 Balochistan 62 (PLP)

ABDUL HAMEED BALOCH, J.

Through this common order I intend to dispose of Criminal Miscellaneous Quashment Petitions Nos. 640, 641 and 649 of 2022, as the same are arising out of the same subject matter and relate to common question of law, whereby the petitioners prayed as under: In Criminal Quashment Petition No.640 of 2022: It is, therefore, respectfully prayed that FIR No. 127 of 2022 registered at Police Station Vinder District Lasbella under Sections 123-A, 124-A, 153-A, 505, 504, P.P.C. being illegal, unlawful, unwarranted in the eyes of law and void ab initio, may kindly be quashed, in the interest of justice, fair play and equity. Any other relief, which this Honourable Court deems just and proper while quashing FIR, may also be granted to the petitioners in the interest of justice. In Criminal Quashment Petition No.641 of 2022: It is, therefore, respectfully prayed that FIR No. 99 of 2022 registered at Police Station Bella District Lasbella under Sections 123-A, 124-A, 153-A, 505, 504, P.P.C. being illegal, unlawful, unwarranted in the eyes of law and void ab initio, may kindly be quashed, in the interest of justice, fair play and equity. Any other relief, which this Honourable Court deems just and proper while quashing FIR, may also be granted to the petitioners in the interest of justice. In Criminal Quashment Petition No.649 of 2022: It is, therefore, respectfully prayed that FIR No. 64 of 2022 registered at Police Station Chaman District Killa Abdullah under Sections 153-A, 131, 504, 505, 500, P.P.C. being illegal, unlawful, unwarranted in the eyes of law and void ab initio, may kindly be quashed, in the interest of justice, fair play and equity. Any other relief, which this Honourable Court deems just and proper while quashing FIR, may also be granted to the petitioners in the interest of justice.

2. Concise facts of the case are that the following FIRs have been registered against the petitioner:

1. On 26.11.2022 the complainant Ghulam Farooq lodged FIR No. 127 of 2022, under Sections 123-A, 124-A, 153-A, 505, 504, P.P.C. with Police Station Winder.

2. On 26.11.2022 the complainant Mubasher Aziz lodged FIR No. 99 of 2022, under Sections 123-A, 124-A, 153-A, 505, 504, P.P.C. with Police Station Bella.

3. On 26.11.2022 the complainant Nasrat Khan lodged FIR No. 64 of 2022, under Sections 153-A, 131, 504, 505, 500, P.P.C. with Police Station Chaman at Bella. The contents of all the three FIRs are same. As per contents of FIRs Senator Azam Swati (petitioner) in his tweeter message levelled allegation against the officer of Pakistan Army.

3. Heard. Perused the record. The petitioner sought quashment of the above referred FIRs, registered with different police stations. While dealing with the quashment petitions, section 561-A Cr.P.C being relevant is reproduced as under: 561-A, Cr.P.C. was mainly to prevent abuse of process of court; and to secure the ends of justice, process of Court, must interfere and if the prosecution, on the face of it, was illegal, the proceedings in such cases could be rightly quashed.

4. Section 561-A Cr.P.C confers this court inherent power to make such order under the Code to prevent abuse of process of any court or secure end of justice. Power of court under this provision are very wide. The court can exercise the power at any stage. The High Court in exceptional cases can exercise the inherent power without waiting for trial court to pass order under Sections 249-A Cr.P.C and 265-K, Cr.P.C, if there is no incriminating evidence collected by the prosecution, and further proceeding with the case is abuse of process of law or otherwise, to secure the end of justice. In this regard Reliance is placed on the case of Naseem Khan Kasi v. Station House Officer, Police Station Quetta 2022 PCr.LJ 887, whereby it has been observed as under:

5. I am conscious of the fact that this Court in its inherent powers under section 561-A, Cr.P.C. ordinarily not interfere with the police investigation in a cognizable offence and more particularly when alternate course of action is also available under section 249-A or 265-K, Cr.P.C. before the trial Court, but however, simultaneously it is the prime duty of this Court to guard the citizen from any abuse of process of law. Even from the plain reading of FIR, no offence has been made out. Reliance in this regard is placed on the case of Miraj Khan v. Gul Ahmed and 3 others, 2000 SCMR

122. The relevant portion is reproduced here under: "

4. There is no absolute bar on the power of the High Court to quash an FIR and it is not always necessary to direct the aggrieved person to first exhaust the remedy available to him under section 249-A, Cr.P.C. It is coordinal principle of law that every criminal case should he adjudged on its own facts. The facts of one case differ from the other and, therefore, no rule of universal application can be laid in a certain case so as to be made applicable to other cases. Even in the case reported in PLD 1997 SC 275, relied on by the learned counsel for the petitioner this principle has been recognized that the High Court in exceptional cases can exercise jurisdiction under section 561-A, Cr.P.C. without waiting for trial Court to pass orders under section 249-A or 265-K, Cr.P.C., if the facts of the case so warrant. The main consideration to be kept in view would be whether the continuance of the proceedings before the trial forum would be futile exercise, wastage of time and abuse of process of Court or not. If on the basis of facts admitted and patent on record no offence can he made out a then it would amount to abuse of process of law to allow the prosecution to continue with the trial. If the facts of the present case are scrutinised on the touchstone of the above criteria then it would be obvious that the further proceedings in the Court on the basis of the impugned FIR would be sheer wastage of time. It is admitted in the FIR which is based on the written application of the complainant that the disputed amount was given as "Qarz-e-Hasna ". It is obvious that the addition of word "Amanat" with "Qarz-e-Hasna" is ridiculous and appears to have been added so as to justify the registration of the criminal case. The cases relied on by the learned counsel for the caveator support the view taken by the High Court.

5. As per record the FIRs have been registered without prior order of the Federal and Provincial Government as required under Section 196 Cr.P.C, which reads as under:

196. Prosecution for offences against the State. No Court shall take cognizance of any offence publishable under Chapter VI or IX-A of the Pakistan Penal Code (except section 127), or punishable under section 108-A, or section 153-A, or section 294-A, or section 295-A or section 505 of the same Code, unless upon complain made by order of, or under the authoring from, the Federal Government, or the Provincial Government concerned, or some officer empowered in this behalf by either of the two Governments.

6. As per above referred section, the complaint cannot be filed without order made by or under the authority from, the Federal or Provincial Government. The record reveals that all the three FIRs have been registered by the private persons without order of the competent authority. Where the law provides for doing a thing in a particular manner, it should be done on same manner, otherwise not done at all.

7. The record reveals that the allegations against the petitioner are that he in tweeter message used abusive language and threatened the Pakistan Army Officer. The FIRs have been registered on 26.11.2020 but still the prosecution has not collected any material. Booking political opponent for waging war against his country is not an ordinary charge. The petitioner is sitting member of Senate of Pakistan and former Federal Minister. Such allegation deemed to be whimsical. The waging war against the State is not ordinary allegation; it means the loyalty of a citizen is in stake. Reference can be made to the reported case of this court titled "Muhammad Essa Roshan v. State 2021 PCr.LJ 1342, whereby it has been observed as under:

4. According to the FIR the offence under sections 123-A, 153-A and 124-A, P.P.C. are also included in the same. The above section is not only non-cognizable but there is no concept of registration of the case under sections 123-A, 153-A and 124-A, P.P.C. by the local police. Cognizance of the case under the above section can only be taken on the complaint instituted by the Federal Government or Provincial Government concerned. In the present case, the same is lacking as the Federal Government or the Provincial Government has not either examined the case or taken a decision to file complaint regarding commission of the alleged offence. In spite of above, the police has investigated the case against the petitioner, thus, the entire proceedings started with registration of the FIR of the case and investigation of the case are not sustainable in the eyes of law. Besides the provisions of section 196, Cr.P.C. is couched in the negative language which is mandatory in nature as opposed to being merely directed. It would be relevant to reproduce section 196, Cr.P.C. which reads as under: "

196. Prosecution for offences again the State.

No court shall take cognizance of any offence punishable under chapter VI or IX-A of the Pakistan Penal Code (except section 127), or punishable under section 108-A, or section 153-A or section 294 or section 295-A or section 505 of the same Code, unless upon complaint made by order of or under authority from, the Central Government or the Provincial Government concerned, or some officer empowered in this behalf by either of the two Governments." Thus non-compliance of section 196, Cr.P.C. vitiates the entire proceedings. In the absence of the order by the Government as required by section 196, Cr.P.C. the local police has no jurisdiction to lodge the FIR. Besides, there is also violation of mandatory provisions of Code of Criminal Procedure inter alia in the registration of the case and conducting investigation. The rules of procedure are meant to ensure the right to liberty of the accused and due dispensation of justice, it is the fundamental principle of law that penal laws must be interpreted strictly and not so as to deprive a subject of this legal right. It is also settled principle of law that if a particular thing is required to be done in a particular manner then it should be done in that manner or it should not be done or at all. Reference may also be made to the case of Captain (R) Muhammad Safdar v. Inspector General of Police, Khyber Pakhtunkhwa, Central Police Office, CPO, Peshawar 2022 PCr.LJ 1342.

8. The record further transpires that an FIR has been registered by FIA Cyber Wing Circle Islamabad, under Section 20 of the Prevention of Electronic Crimes, Act (PECA), 2016, read with Sections 131, 500, 501, 505, 109, P.P.C. against the petitioner. Similarly another FIR No. 161/2020 has been registered at Police Station Kuchlak, District Quetta under Section 20 of the PECA, 2016, read with Sections 131, 500, 501, 505, 109, P.P.C. against the petitioner. It appeared from the record that the contents of all the FIRs are same. The Hon'ble Apex Court on the case of Sugra Bibi v. State PLD 2018 SC 597 held that second FIR cannot be registered for the same offence. Even otherwise double punishment or prosecution is not permissible. Article 13 of the Islamic Republic of Pakistan 1973 (the Constitution) reads as under:

13. Protection against double punishment and self incrimination. No person? (a) shall be prosecuted or punished for the same offence more than once; or (b) shall, when accused of an offence, be compelled to be a witness against himself.

9. It is settled principle of law that the judgment of the Hon'ble Supreme Court of Pakistan is binding on each and every organ of the State by virtue of Article 189 of the Constitution. Reference can be made to the case of Noor-Un-Nisa v. United Bank Limited PLD 2021 Lah. 90, whereby it has been observed as under:

17. Under Article 189 of the Constitution of Islamic Republic of Pakistan, 1973, decisions of august Supreme Court are binding on all the courts subordinate to it when they decide the question of law and enunciated the principles of law. In catena of judgments Superior Courts have reiterated this principle and in case titled as "Shahid Pervaiz v. Ijaz Ahmad and others" (2017 SCMR 206) august Court has held that even the obiter dicta of the august Supreme Court is of greater value. Relevant paragraphs of the judgment are provided below: "

105. Under Article 189, this Court is the court of last resort and laws declared or principles enunciated by it are binding on all the subordinate courts and authorities in Pakistan as reflected in Farhat Azeem v. Waheed Rasul (PLD 2000 SC 18)

124. Even obiter dictum of the Supreme Court, due to high place which the Court holds in the hierarchy in the country enjoy a highly respected position as if it contains a definite expression of the Court's view on a legal principle, or the meaning of law... "

10. Any decision of Apex court in respect of question of law or is based upon or enunciated on principle of law shall be binding on all the court in Pakistan. In Abdul Waheed's Case (2006 SCMR 489) it was held that "It is settled principle of law that observation of this court is binding on each and every organ of the State by virtue of Articles 189 and 190 of the Constitution."

11. From the above referred law, each and every organ of the State is under legal obligation to obey the decision/observation of Hon'ble Apex Court. The FIRs have been registered in different Police Stations of the Province is flagrant violation of dictum laid down in Sughra Bibi Case. It appears that either the respondents were unaware about the judgment rendered by the Apex Court in Sughra Bibi Case or willfully disregarded/disobeyed the judgment passed by the Hon'ble Supreme Court of Pakistan. The SHOs of the concerned police station are not above the law. They have to follow the law in letter and spirit. The law does not allow them to act on their whim and capricious manner. Registration of FIRs for the same offence is mockery with law and amounting to misuse of authority. In view of what has been stated and discussed hereinabove, the Criminal Quashment Petitions Nos. 640, 641 and 649 of 2022 are allowed. The FIR No.127 of 2022 registered at Police Station Winder District Lasbella under Sections 123-A, 124-A, 153-A, 505, 504, P.P.C., FIR No.99 of 2022 Police Station Bella District Lasbella under Sections 123-A, 124- A, 153-A, 505, 504 and FIR No. 64 of 2022 registered at Police Station Chaman, District Killa Abdullah under Sections 153-A, 131, 504, 505, 500, P.P.C., are hereby quashed. If the petitioner Muhammad Azam Khan Swati son of Yousaf Khan is in custody in the aforementioned FIRs, he shall be released forthwith, if not required in any others case. The Registrar of this court is directed to send copy of this judgment to the Chief Secretary, Government of Balochistan and the Inspector General Balochistan for onward transmission to the Deputy Commissioners and SHOs in the province. MH/14/Bal. Petition allowed.